United States District Court for the District of Columbia
February 5, 2004.
ROY BANKS, Plaintiff,
OFFICE OF THE SENATE SERGEANT-AT-ARMS AND DOORKEEPER OF THE UNITED STATES SENATE, Defendant
The opinion of the court was delivered by: JOHN FACCIOLA, Magistrate Judge
This is a Title VII action against the Office of the Senate
During the course of the deposition of a witness named Alvin Macon,
plaintiffs counsel posed four questions to which objection was made. As
the matter now stands, defendant's counsel has withdrawn the objection to
two of the four questions and the dispute centers on the remaining two
questions. This dispute has now generated 78 pages of pleadings or 39
pages per question. That must the break old record. Since there has been
so much heat and so little light, I must first elucidate the principles
pertaining to the attorney-client and work product privileges when the
defendant is a government agency.
The Attorney-Client Privilege
The attorney-client privilege in this Circuit shields what the client
tells an attorney in confidence for the purpose of securing legal advice
or legal services. As I have stated:
I have discussed the attorney-client privilege in
several of my previous opinions. The fundamental
premise of all of them is that
the communication must have been made to "a member
of the bar of a court" who "in connection with
th[e] communication is acting as a lawyer" and the
communication must have been made for the purpose
of securing either an opinion on law, legal
services, or assistance in some legal proceeding.
In re Sealed Case, 737 F.2d 94. 98-99
(D.C. Cir. 1984). The privilege only applies
when the information is the product of an
attorney-client relationship and is maintained as
confidential between the attorney and client.
Brinton v. Department of State. 636 F.2d 600.
603 (D.C. Cir. 1980). cert denied. 452 U.S. 905.
101 S.Ct. 3030. 69 L.Ed.2d 405 (1981).
The mere showing that the communication was from
the client to the attorney does not suffice.
United States v. Western Electric Co.,
132 F.R.D. 1. 3 (D.D.C.1990). The standard
applied is to determine whether the client
reasonably intended the attorney to keep the
communication confidential. In re Ampicillin
Antitrust Litigation, 81 F.R.D. 377. 389
(D.D.C.1978) ("[I]n order for the privilege
to apply the client's communications must be made
with the intention of confidentiality . . .");
Overseas Private Investment Corporation v.
Mandelbaum, Civ.A. No. 97-1138, Memorandum Opinion
at 6, December 15, 1998, (The privilege insulates
from disclosure those communications between a
client and his attorney in which the client
enjoyed a reasonable belief that what he shared
with counsel would remain confidential.).
Thus, the relevant inquiry for the set of
documents containing communications from the
client to the attorney is whether the
communications made by Nextel to its attorneys
were for the purposes of seeking legal advice,
whether Nextel had a reasonable belief that the
communication was confidential, and whether the
disclosure of this communication would tend to
reveal this confidential information. The
attorney-client privilege also protects
communications from the attorney to the client but
only insofar as the attorney's communication
discloses a confidential communication from the
client. Evans v. Atwood, 177 F.R.D. 1, 3
(D.D.C.1997), (citing Brinton v. Department
of State, 636 F.2d 600, 603-604 (D.C. Cir. 1980)).
United States v. Motorola. 1999 WL 552553 (D.D.C. May 28.
An attorney-client relationship may exist between an institution or
organization and its counsel. A corporation may claim an attorney-client
privilege for confidential communications
made by its employees to corporate counsel in order to permit
counsel to render legal services or legal advise to the corporation.
There is no doubt that government agencies have the same privilege.
Evans v. Atwood, 177 F.R.D. 1. 3 (D.D.C. 1997), (citing
Tax Analysts v. IRS, 117 F.3d 607. 617 (D.C. Cir. 1997)).
The Work Product Privilege
Attorneys can also claim, on behalf of their clients, a privilege
against disclosure of their work product. That privilege takes two forms.
Fed.R.Civ.P. 26(b)(4) protects from disclosure a document prepared
by a party or her agent, including her attorney, for trial or in
anticipation of litigation. While the document may lose a portion of its
protection upon a showing of substantial need and the inability to secure
a substantial equivalent, the "mental impressions, conclusions, opinions
or legal theories of an attorney . . . concerning the litigation" are
never to be disclosed. Fed.R.Civ.P. 26(b)(3). Hence, the
attorney-client privilege may yield to several exceptions, but the work
product privilege is, in this sense, inviolate.
The federal courts also protect work product even if it has not been
memorialized in a document. Questions of a witness that would disclose
counsel's mental impressions, conclusions, opinions or legal theories may
be interdicted to protect "intangible work product." Sadowski v.
Gudmundsson, 206 F.R.D. 25 (D.D.C. 2002): Neese v. Pittman,
202 F.R.D. 344 (D.D.C. 2001); Athridge v. Aetna Cas. & Surety Co.,
184 F.R.D. 200 (D.D.C. 1998).
Application of These Principles
Application of these principles to the deposition of an agency
employee,*fn1 whether a present or former employee, would yield the
following results when that employee is deposed in a lawsuit against the
First, counsel for the agency may object to a question that would
disclose a communication made by the agency employee that was intended by
the employee to be confidential and was uttered to permit counsel to
render legal advice or legal services to the agency. Note that the
privilege pertains only to what the employee told the lawyer; what the
lawyer told the employee is not protected unless it necessarily discloses
what the employee told the lawyer in confidence.
Even if the attorney-client privilege is not available, the question
may still be improper if the answer would tend to disclose the lawyer's
intangible work product privilege as I have defined it, i.e., it
would disclose counsel's mental impressions, conclusions, opinions or
Applying these principles to the two questions at issue compels the
conclusion that Mason's answers would not have breached either privilege.
The first question to Macon was:
When you were given a copy of this notice of
deposition were you told why you were given a copy
The answer to this question could not possibly have required Macon to
disclose what he told defendant's counsel in confidence since it asked
him to indicate what someone else told him. Nor could the answer possibly
disclose any mental impressions, opinions, or strategic thinking
by defendant's counsel.
The second question posed to Mason was:
Has anyone ever explained to you if you have a
conflict of interest with the Sergeant-at-Arms,
who will represent you? And what was the option
[you had concerning Ms. Pence's and Ms. Watkins'
Again, the question could neither have provoked the disclosure of
anything Macon told the attorneys in confidence nor disclosed counsels'
mental impressions, opinions or strategic thinking.*fn2
Agency Counsel's Representing Agency Employees
I have purposefully not discussed the significance of government
counsel's representing the witness in this context because I deem it
irrelevant. There is only one instance where a government lawyer may
truly be said to be representing a government employee in the same sense
as the traditional representation of a client by a lawyer. When
authorized by the Attorney General, attorneys for the Department of
Justice may represent employees of federal agencies within the Executive
Branch when plaintiffs sue those employees and predicate their cases upon
acts that "reasonably appear to have been performed within the scope of
the employee's employment." 28 C.F.R. § 50.15.*fn3 The
most common example of the exercise of this authority
occurs in a so-called "Bivens"*fn4 action in which a plaintiff
claims that a government employee violated her constitutional rights. The
Assistant United States Attorney who represents the Park Police officer
who is sued for unreasonably searching the plaintiff is an obvious
example. Once the Attorney General authorizes the Assistant's
representation, there exists the same attorney-client privilege between
the Assistant and the Park Police officer that would have existed if the
Park Police officer had hired her own counsel. There must, of course, be
some connection between the act complained of and the government's
business. No one would seriously suggest that the taxpayers should pay
for government lawyers to represent a government employee when her spouse
sues her for divorce.
On the other hand, when a government employee is served with a
subpoena duces tecum, that calls for the production of documents
that belong to a government agency or body, counsel for the agency may
protest there has not been compliance with agency regulations pertaining
to such a subpoena*fn5 or that the documents sought are, according to
the agency, privileged from production. In this situation, it is the
agency that is the client. The individual served with the subpoena is a
nominal or titular party and his representation by agency counsel is
normative and not personal. Counsel is appearing for the employee solely
to protect the agency's interest in preventing disclosure of the
documents and, thereby, fulfilling counsel's obligation to her client,
On a daily basis, counsel for an agency appear to represent the agency
at a deposition
taken of a government employee. Like any other lawyer, counsel for
the agency must represent the agency's interest by preparing the witness
for the deposition and objecting to any question that is improper or
seeks disclosure of privileged information. Whether or not agency counsel
purports to represent the witness being deposed does not diminish or
contract the privileges available to the agency one iota. They remain the
same for the simple reason that counsel is representing her client, the
agency, and the employee, who is being asked questions about matters that
occurred during the course of employment, cannot claim a privilege
independent of or greater than the privilege his employer can claim.
Hence, counsel for the agency cannot assert any greater privilege than is
available to the agency by purporting to represent the employee, as well
as the agency, in the litigation.
In the hopes of resolving the ethical problems that arise when the
attorneys for the defendant indicate they are also representing the
employees of the defendant, I add the following final note. A lawyer may
not communicate with a party whom she knows to be represented by an
attorney without that attorney's consent. B.C. Rules of Professional
Conduct R. 4.2(a). The B.C. Bar Legal Ethics Committee has opined,
however, that if the opposing party is a corporation, a lawyer may
interview persons employed by that corporation without opposing counsel's
consent if those employees do not have the authority to bind the
corporation with respect to the pending litigation. B.C. Bar Legal Ethics
Comm. No. 129. Most significantly in that opinion, the B.C. Committee
cited as authoritative an opinion of the ABA Committee on Ethics and
Professional Responsibility that spoke to the precise question presented
here: must a lawyer secure the consent of opposing counsel before
interviewing persons employed by a
government agency? The ABA Committee indicated that the lawyer did
not have to seek such consent, stating, in pertinent part, the following:
Nor should the rule [requiring consent of counsel
before opposing counsel interviews her client]
extend to government employees who are merely
witnesses, or otherwise sources of information,
but who have no decisional authority with regard
to the subject matter of the representation, for
such an extension would inhibit the search for
truth without protecting any government interest
legitimately sought to be protected by the rule.
D.C. Bar Legal Ethics Comm. No. 129 (quoting ABA Formal Opinion
It would then follow that counsel for the plaintiff can interview
persons employed by the defendant without opposing counsel's consent. In
my view, the indication by defendant's counsel that they represent the
employees should not be used as a way to require plaintiffs counsel to
seek defendant's counsel's consent before conducting the interview. It
must be recalled that, generally speaking, no one owns a witness and each
party to a lawsuit has an equal right to interview the witnesses who are
not parties. See, e.g., Flamma v. Atlantic City Fire Dept.,
573 A.2d 158. 161 (N.J. 1990). It, therefore, follows that it is improper in
this Circuit for a prosecutor to tell government witnesses not to speak
to defense counsel if the prosecutor is not present. Gregory v.
United States. 369 F.2d 185. 187-188 (D.C. Cir. 1966) ("But we know
of nothing in the law which gives the prosecutor the right to interfere
with the preparation of the defense by effectively denying defense
counsel access to the witnesses except in his presence."). While
application of that principle to civil matters may or may not be
appropriate, the case bespeaks the attitude within the profession that
obstructing another party's access to a witness in any kind of case
solely for the sake of obstruction is improper. See Restatement
(Third) of the Law Governing Lawyers, § 116(2) (2000). By the
same token, counsel who is interviewing the
witness has no right to attempt to have the witness disclose
information that interviewing counsel has reason to believe is
privileged. E.g., Valassis v. Samelson, 143 F.R.D. 118
(E.D. Mich. 1992); In re Domestic Air Transp. Antitrust
Litigation, 141 F.R.D. 556. 561-62 (N.D. Ga. 1992); Amarin
Plastics, Inc. v. Maryland Cup Corp., 116 F.R.D. 36. 42 (D. Mass.
1987). It would, therefore, follow that counsel for the defendant
may not use their representation of the employee and their concomitant
"right" to withhold their consent as a means to prevent plaintiff's
counsel from interviewing present or former employees of the defendant.
Counsel for the defendant must permit those interviews whether or not
they purport to represent the witnesses. On the other hand, plaintiffs
counsel may not ask any question that would reasonably threaten the
witness's disclosing of any information that is protected by the
attorney-client or work product privileges as I have defined them in this
The parties have also addressed other problems that have arisen either
during the course of or during the planning for the deposition. I will
not speak to hypothetical issues but, in the exercise of my obligation to
keep a firm hand on the discovery process, I will provide them with
guidance so that they cannot argue that they were not aware of my
expectations the next time one of them complains. I will first say this.
The papers in this case are all too full of the kind of bickering that is
costing everyone far too much money. If it does not stop, counsel will be
amazed at how much more expensive it will get once I start issuing
sanctions. I am denying the motion for sanctions, but a word to the wise
Second, directing a witness not to answer a question on the grounds of
relevance is a clear violation of the Federal Rules of Civil Procedure
(F.R.Civ.P. 30(d)(1)) and sanctionable.
Third, the depositions of all remaining witnesses will be conducted in
accordance with the principles elucidated in this opinion. Failure to
comply with them will result in sanctions.
I specifically note that Mr. Macon's deposition may be taken again and
conducted in accordance with these principles.
An Order accompanies this Memorandum Opinion